REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 295  OF 2010 (@ SLP (Crl.) No. 3207 of 2009)

Satyavir Singh Appellant

Vs.

State of U.P.          Respondent

JUDGMENT

Swatanter Kumar, J.

1. Leave granted.

2. Satyavir Singh, appellant-accused was tried for an offence under  

Section 307 of the Indian Penal Code, 1860 (hereinafter referred  

to as the 'Code') and Section 25/27 Arms Act, 1959 (for short the  

'Act')  in the Court of Assistant Sessions Judge,  Bulandshahr,  

and was found guilty for both the offences.    After hearing the  

accused  on the question of sentence,  the Court  awarded him  

three years R.I. under Section 307 of the Code  and one year R.I.  

under Section 27 of the Act.  Both the sentences were ordered to  

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run concurrently.  Upon appeal by the accused, the learned 1st  

Additional Sessions Judge at Bulandshahr set aside the judgment  

and  sentence  and  while  partly  allowing  the  appeal  by  its  

judgment dated  06.11.1980  acquitted him of both the charges  

for which he was convicted by the learned Assistant Sessions  

Judge,  Bulandshahr  and  only  convicted  him  for  offence  u/s  

25(1)(a) of the Act and sentenced him to imprisonment till the  

rising of the Court.  With the leave of the High Court, the State  

preferred an appeal against the judgment of acquittal.  The High  

Court  of  Judicature  at  Allahabad   vide  its  judgment  dated  

20.10.2008 set aside the order of acquittal and while allowing  

the appeal partly,  it convicted the appellant under Section 307  

of the Code and declined to interfere with the sentence awarded  

by the  First  Appellate  Court   in  relation to  an  offence  under  

Section 25 of the Act.  

2.  It will be useful to refer to the findings and  

conclusions recorded by the High Court of the State.

“On the basis of evidence on record, the charge  under  Section  307  IPC  is  proved  beyond  all  reasonable and probable doubt.  

The  impugned  judgment  and  order  passed  in  Criminal Appeal No. 99 of 1979,  'Satyavir Singh  vs.  State  of  U.P.'  is  thus  found  to  be  

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unsustainable  as  far  as  acquittal  of  accused- respondent under Section 307 IPC is concerned.

We do no find any illegality or irregularity in the  impugned judgment and order dated 6.11.1980  regarding acquittal of accused-respondent under  Section 27 Arms Act and his conviction under  Section 25(1)(a) Arms Act.

The  criminal  revision  filed  by  Bhanu  Prakash  Sharma  is  thus  partly  allowed.   We  are  not  inclined to enhance the sentence awarded under  Section  307  IPC  passed  by  learned  Assistant  Sessions Judge, Bulandshahr in S.T. No. 328 of  1976,  State vs. Satyavir Singh.  No prayer for  the  enhancement  of  the sentence under Section  307 IPC  has been made in the criminal revision  by Bhanu Prakash Sharma.   The occurrence is  dated  9.2.1975.    We  are  also  not  inclined  to  enhance  the  sentence  awarded  to  accused- respondent under Section 25(1)(a) Arms Act.

Keeping in view the date of occurrence of this  case,  we are not inclined to enhance the sentence  as awarded by learned Assistant Sessions Judge,  Bulandshahr  in  S.T.No.  328  of  1976  in  government appeal as well.

We thus confirm the sentence of three years R.I.  Awarded  under  Section  307  IPC  by  learned  Assistant  Sessions  Judge,  Bulandshahr  vide  judgment  and  order  dated  21.5.1979  passed  in  S.T. No. 328 of 1976,  State vs. Satyavir Singh.

Government Appeal is thus partly allowed. The  judgment  and order  dated  6.11.1980 passed  by  1st  Additional  Sessions Judge,   Bulandshahr  is  partly set aside to the extent referred above. The  accused-respondent Satyavir  Singh having been  found guilty  under Section 307 IPC is sentenced  to three years R.I.

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We decline to interfere with the order of acquittal  passed under Section 27  Arms Act and instead  convicting the accused-respondent under Section  25(1)(a)  Arms  Act  and  sentencing  him  to  imprisonment till the rising of the Court.

The judgment and order passed today is certified  to  the  Court  of  1st  Additional  Sessions  Judge,  Bulandshahr  and  such  court  shall  thereupon  make  such  orders  as  are  conformable  to  the  judgment and order of this Court and if necessary  the  record  shall  be  amended  in  accordance  therewith.”

3. Legality  and  correctness   of  the  judgment  and  order  of  

sentence passed by the High Court is questioned by the appellant-

accused in the present appeal under Article 136 of the Constitution  

of India inter alia  but primarily on the following grounds :

(a) The High Court has erred in law in setting aside the judgment  

of  acquittal  recorded  by  the  First  Appellate  Court,  which  was  

reasoned one and based on a proper appreciation of evidence.  Thus  

the High Court ought not to have upset the judgment of acquittal.  

Therefore, the High Court has acted beyond the limitations on such  

exercise  of  power  and  heavy  reliance  is  placed  on  the  case  of  

Ganesh  Bhavan  Patel  &  Anr.  vs.  State  of  Maharashra  :  1978  

(4)SCC 371.

(b)  No motive was proved and in absence of a specific motive,  

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the High Court has erred in holding that the appellant is guilty of  

offence under Section 307 of the Code.

(c)       The expert  evidence  being at  variance  and the  medical  

evidence not supporting the injuries allegedly found on the person  

of the victim,  the benefit of doubt  should have been given to the  

accused  as  the  prosecution  had  failed  to  prove  its  case  beyond  

reasonable doubt.   

(d) The Court  should have appreciated  that  it  

was an accidental firing and the  prosecution had not put forth  any  

explanation on record as to how the weapon (double barrel  gun)  

was broken.

4.      In  order  to  appreciate  the  merit  or  otherwise  of  the  

submissions made before us reference to the  case of prosecution  

would be necessary :  

5. Facts

Bhanu  Prakash  Sharma,  (PW-1)  was  taking  tea  at  Hamid  

Khan's Hotel at about 2.30 P.M. His brother Dharam Prakash (PW-

3)  arrived  at  the  crossing  towards  Narora  Bus  Stand.   Dharam  

Prakash aged about 18 years was a student of Khurja Polytechnic.  

Satyavir  Singh,  accused  is  the  resident  of  village  Niwari.  Vijay  

Singh is his elder brother and owned a double barrel gun under a  

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valid licence.  It  is  the case of the prosecution that the fields of  

farmers  in  village  Niwari  were  irrigated  by  tubewell  of  Prem  

Shankar Thakur.  A road was constructed for the power house due  

to  which  some farmers  of  village  Niwari  started  irrigating  their  

fields  from the  tube  well  of    Bhanu  Prakash  Sharma  (PW-1),  

resident of village Jairampur Bangar. This caused some displeasure  

to Prem Shankar Thakur, father of Satyavir Singh,  the accused.   At  

about  2.30  P.M.  on   09.02.1975 said  Bhanu Pratap  sharma was  

taking tea in the Hotel of Hamid Khan at  Chauraha of the village.  

Dharam Prakash  came  from the  side  of  Narora  Bus  Stand.  The  

accused on seeing Dharam Prakash,  who ultimately examined as  

PW-3,  challenged  him by saying that  how he  was irrigating  the  

fields  of  villagers  from his  tube-well.   The  accused,  as  already  

noticed, was armed with a licenced gun of his brother. The accused  

thereupon  fired  two  bullets  from  that  gun  on  Dharam  Prakash.  

Dharam Prakash was medically examined on that very day by Dr.  

Suresh   Chandra  Singh  (PW-5)  and  the  following  injuries  were  

noticed on his person:

'INJ: (1) Lacerated wound 1 c.m. X 1  c.m.  X  thickness   of   the   left    upper   

arm,  on  the  left  upper  arm  front   

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aspect  in  upper  part.  There  are  four   

abrasions each 1/4c.m. X 1/4c.m. on its lower and  outer aspect.  Suspected underneath Adv.  X-ray.  The margines of the wound are inverted.

(2)

Lacerated wound 1.5c.m. X 1.5c.m. X thickness of  the left upper .. on the back aspect of the left upper  arm  2c.m.  Above  the  elbow...  Suspected  underneath.   Adv.  X-ray.   The  margines  of  the  wound are inverted.

(3) Lacerated wound 7.5 c.m. X 3.5 c.m.on the  left  forearm upper  half-inner  aspect.   It  is  bone  deep. Suspected fracture underneath.  Adv. X-ray.'

6. The  occurrence  was  witnessed  by  Bhanu  Prakash  Sharma  

informant,  Rama  Shanker  (PW-4);    Brij  Bhushan  and  others.  

Bhanu Prakash Sharma reported the matter to the police,  the first  

information report  was registered being Exh.Ka-1 at about 16.05  

hours  and  the   case  under  Section  307  of  the  Code  and  under  

Section  25  of  the  Act  was  registered  against  the  accused.   The  

accused was arrested.  The accused was also medically examined  

on  that  very  day  and  on  his  person  the  following  injuries  were  

noticed:

'INJ: (1) Swelling 5c.m. X 5 c.m on the right side  of front of face  and nose. There is clotted blood  in both nostrils. Red in colour Adv. X-ray.

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(2)Swelling  2c.m.  X  1/2c.m.  on  the  left  cheek lower jaw.  Adv. X-ray in colour.

(3)Abrasion 1/5 c.m. X 1/5 c.m. on the front  of the right knee joint.  Oozing stopped.'

7. Accused  also  lodged  a  report  with  Police  Station,   Dibai,  

District Bulandshahr on 09.02.1975 at about  5.00 P.M. stating  

that Pandit Raghunandan Prasad resident of village Jairampur  

Bangar had a tube-well in the village.  Later on  the appellant-

accused  installed  a  tube-well  in  his  own village  Niwari  and  

started giving water for irrigation at lesser price.  This affected  

the  income of  Pandit  Raghunandan Prasad.   On 09.02.1975  

when he was carrying the gun of his brother Vijay Pal Singh  to  

Narora and reached  at  the shop of  Hamid Khan situated in  

Village Jairampur Bangar,  Bhanu Prakash,  Dharam Prakash,  

Rama Shankar and other  unknown person met him and started  

snatching his gun.  The fire accident happened due to snatching  

and  caused  injuries  to  Dharam  Prakash.   The  accused  was  

beaten and his gun was snatched.  This came to be registered as  

Criminal Case No. 27A/75;  whereas on the complaint of PW-1,  

Criminal case 87/75 under Section 307 of the Code and Section  

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25 of the Act respectively was registered.

8. As the various contentions raised on behalf of the appellant are  

interconnected  and  common  evidence  would  have  to  be  

examined to record a finding, it  will be appropriate for us to  

have a common discussion on these arguments.   

9. As is evident from the record before us, the learned trial court  

vide its judgment dated 21.05.1979 had convicted the accused  

of both the offences under Section 307 of the Code as well as  

27 of the Act, which judgment of the trial court was set aside  

and the accused was acquitted of both these offences and was  

convicted for the offence under Section 25 (1) (a) of the Act  

while awarding him the punishment of imprisonment till rising  

of the court.  This judgment of acquittal which was set aside by  

the  High Court  practically  restored the  judgment of  the  trial  

court and partly allowed the appeal of the State and convicted  

the accused of an offence under Section 307 of the Code and  

maintained the conviction under Section 25 (1) (a) of the Act.   

10.The reliance placed by the learned counsel upon the judgment  

of this Court in the case of Ganesh Bhavan Patel’s case  (supra),  

is to buttress his submission that a judgment of acquittal should  

not be interfered by the High Court, as on facts and overall view  

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of  the  evidence  recorded  by  the  First  Appellate  Court,  the  

findings  were  reasonable  and,  therefore,  no  interference  was  

called for.  It is true that in this case the court observed that  

where two reasonable conclusions can be drawn on evidence on  

record, the High Court should, as a matter of judicial caution,  

refrain from interfering with the order of acquittal recorded by  

the court below.  To put it simply, if the order acquitting the  

accused is reasonable and plausible and cannot be entirely or  

effectively dislodged or demolished, the High Court should not  

disturb the  order  of  acquittal.   The  principles  with  regard  to  

exercise of judicial discretion by the High Court while hearing  

an appeal against a judgment of acquittal have been well settled  

and are hardly open to any expansion.   

11.Right from the case of Sheo Swarup v. King Emperor : AIR  

1934 PC 227, the principles  governing exercise  of discretion  

were well stated by the court with a specific note that there was  

no occasion for  placing  limitations  upon the power  unless  it  

was so expressly stated in the code itself.  It will be useful to  

reproduce the dictum of the court at this stage :

“Sections 417, 418 and 423 of the Code give to the  High  Court  full  power  to  review  at  large  the  evidence  upon  which  the  order  of  acquittal  was  

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founded, and to reach the conclusion that upon that  evidence the order of acquittal should be reversed.  No limitation should, 'be placed, upon that power,  unless , it be found expressly stated in the Code.  But in exercising the power conferred by the Code  and before reaching its conclusions upon fact, the  High  Court  should  and  will  always  give  proper  weight and consideration to such matters as (1) the  views of the trial Judge as to the credibility of the  witnesses;  (2)  the  presumption  of  innocence  in  favour of the accused, a presumption certainly not  weakened by the fact that he has been acquitted at  his trial; (3) the right of the accused to the benefit  of any doubt; and (4) the slowness of an appellate  Court in disturbing a finding of fact arrived at by a  Judge  who  had  the  advantage  of  seeing  the  witnesses. To state this however is only to say that  the High Court in its conduct of the appeal should  and will act in accordance with rules and principles  well  known and recognized in the administration  of justice.”

The above stated principles have been reiterated with approval  

and wider dimensions by this Court from time to time.   

12.In the case of Mathai Mathews v. State of Maharashtra : 1970 (3)  

SCC 772, the court while reiterating the said principle stated that  

it is now well settled that order of an appellate court to review  

evidence in appeals against acquittal is as extensive as its power  

in appeals against convictions.  It is also well settled that before  

an appellate  court  can set  aside the order  of acquittal,  it  must  

carefully consider the reasons given by the trial court in support  

of its order and must give a reasoning to reject those reasons. In  

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brief, the appellate court should not disturb the order of acquittal  

except on very cogent grounds and on examination of the entire  

material.   Before  the  appellate  court,  where  the  judgment  of  

acquittal  is  recorded,  two important  aspects  emerge from such  

judgment.   Firstly,  there  is  presumption  of  innocence  of  the  

accused person in our criminal jurisprudence and secondly, the  

concerned court has recorded the finding in favour of the accused  

and disbelieved the prosecution and has founded as a matter of  

fact  that  the  prosecution  has  failed  to  prove  its  case  beyond  

reasonable doubt, thus giving benefit to the accused.  Both these  

presumptions – jurisprudential and in regard to the factual matrix  

– must be kept in mind and unless the conclusions reached by the  

court were palpably erroneous or contrary to law or it is likely to  

result in injustice, the High Court may be reluctant in interfering  

with the judgment of acquittal.  Reference in this regard can also  

be made to the case of Khedu Mohton & Ors. v. State of Bihar :  

1970 (2) SCC 450.

In the case of Kunwar Bahadur Singh v. Shiv Baran Singh & Ors. :  

2001  9 SCC 149,  this Court introduced the caution of exercise of such  

discretion by the court and observed that interference while hearing an  

appeal against judgment of acquittal, the court should not hesitate to  

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examine the matter on merits merely because there is a judgment of  

acquittal in favour of the accused.  Undue benefit need not be given  

particularly if acquittal is based on surmises and conjectures and not  

substantiated by law and evidence on record.  Usefully, reference can  

be made to the relevant findings recorded by the court in para 24 of the  

judgment :

“In the former case declining to go into the merits  may  be  justifiable  but  in  the  latter  case  it  is  impermissible.  There  can  be  no  doubt  that  jurisprudentially  an  accused  is  presumed  to  be  innocent  till  he  is  found  to  be  guilty  by  a  competent  court.  In  giving  its  verdict  the  Court  will give benefit of doubt arising on consideration  of evidence brought on record by the prosecution  or  on  account  of  absence  of  material  evidence  which  ought  to  have  been  adduced  but  is  not  brought  on  record,  to  the  accused  persons  and  acquit  him of the offence charged against.  But a  doubt  arising  on  the  basis  of  surmises  and  conjectures should never be allowed to influence  the  verdict  of  the  Court  as  in  such cases  giving  benefit of doubt to the accused but will be counter  productive and destructive of system of delivery of  justice in criminal cases having repercussions on  existence of every civilised and peaceful society.  The Courts will have to be cautious and prudent to  secure the ends of justice.”

13.In a very recent judgment a Bench of this Court in the case of  

Arulvelu  & Anr. v. State represented by the Public Prosecutor &  

Anr. :  2009 (10) SCC 2006, while referring with approval the  

judgment  of  another  equal  (Division)  Bench  in  the  case  of  

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Ghurey Lal v. State of U. P. : 2008 (10) SCC 450 and relying  

upon  various  judgments  of  the  court  stated  the  following  

principles :

“34 In  Ghurey  Lal v.  State  of  Uttar  Pradesh  [(2008) 10 SCC 450] a two Judge Bench of this  Court  of  which  one  of  us  (Bhandari,  J.)  was  a  member had an occasion to deal with most of the  cases referred in this judgment. This Court provid- ed  guidelines  for  the  Appellate  Court  in  dealing  with the cases in which the trial courts have acquit- ted the accused. The following principles emerge  from the cases above:

1.  The accused is  presumed to be innocent  until  proven  guilty.  The  accused  possessed  this  pre- sumption when he was before the trial court. The  trial court's acquittal bolsters the presumption that  he is innocent.

2. The power of reviewing evidence is wide and  the appellate court can re-appreciate the entire evi- dence on record. It can review the trial court's con- clusion with respect to both facts and law, but the  Appellate Court must give due weight and consid- eration to the decision of the trial court.

3. The appellate court should always keep in mind  that  the  trial  court  had the  distinct  advantage  of  watching the demeanour of the witnesses. The trial  court is in a better position to evaluate the credibil- ity of the witnesses.

4. The appellate court may only overrule or other- wise disturb the trial court's acquittal if it has "very  substantial and compelling reasons" for doing so.

5.  If  two  reasonable  or  possible  views  can  be  reached - one that leads to acquittal,  the other to  

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conviction - the High Courts/appellate courts must  rule in favour of the accused.

36. Careful scrutiny of all these judgments lead to  the  definite  conclusion  that  the  appellate  court  should be very slow in setting aside a judgment of  acquittal particularly in a case where two views are  possible.  The trial  court  judgment can not be set  aside  because  the  appellate  court's  view is  more  probable. The appellate court would not be justi- fied in setting aside the trial court judgment unless  it arrives at a clear finding on marshalling the en- tire evidence on record that the judgment of  

the trial court is either ‘perverse’ or wholly unsus- tainable in law.”

14.In addition to the above re-statement of principles, the court also  

referred to what findings could be termed as ‘perverse’ so as to  

call  for  interference  by  the  higher  court  hearing  the  appeal  

against  judgment  of  acquittal.   ‘perverse’  was  stated  to  be  a  

behaviour  which  most  of  the  people  would  take  wrong,  

unacceptable,  unreasonable  and  a  ‘perverse’  verdict  may  

probably be defined as one that is not only against the weight of  

the evidence but is altogether against the evidence.  Besides, a  

finding being ‘perverse’, it could also suffer from the infirmity of  

distorted conclusions and glaring mistakes.  In addition thereto  

there can be cases where for substantial and compelling reasons,  

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good and sufficient  grounds,  very strong circumstances and to  

avoid the ends of justice being defeated, the higher courts have to  

interfere with the judgment of  acquittal  recorded by the lower  

court.

15.From the above enunciated principles it is clear that judgment of  

acquittal  can  be  interfered  by  the  appellate  court.   However,  

exercise  of  judicial  discretion  would  be  guided  by  these  

principles.  It is neither permissible nor possible to enunciate any  

straightjacket formula which can universally be applied to all the  

cases.  The court will have to exercise its discretion keeping in  

view the facts  and circumstances  of  a given case.   The court  

within the stated parameters will well be within its jurisdiction to  

interfere with the judgment of acquittal.  Thus, we will have to  

examine the matter from the point of view whether in the facts  

of  the  present  case  and  evidence  on  record,  High  Court  was  

justified in reversing the judgment of acquittal  and convicting  

the accused of an offence under Section 307 of the Code.

16.The trial court in its lengthy judgment have discussed occular as  

well as documentary evidence produced by the prosecution.  The  

version stated by the  eye witnesses,  the medical evidence as  

well as the veracity of the  statement made under Section 313  

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Code of Criminal Procedure (for short the 'Cr.P.C.') formed the  

basis of the judgment of conviction passed by the  learned trial  

court.    The court  examined  in its right perspective one of the  

most  important  feature  of  the  case  that  why the accused  was  

carrying  gun of his brother and discarded the  narration and  the  

explanation  for  keeping  the  gun  with  him.  According  to  the  

accused   his  brother  Vijay  Pal  (DW-1)  demanded his  gun at  

Narora.   According to report Exh. Kh-2,  Vijay Pal stated to  

bring his licensed gun to Narora as he would come late in the  

evening  and the  Court  was  not  satisfied  with  the  explanation  

and held that prosecution has been able to  bring home the guilt  

of the accused.   

17. The  Court  while  noticing  the  statement  made  by  the  eye-

witnesses PW-1 and PW-3 noticed as under :

“Accused Satyavir himself admits the presence of  Ramashankar.   Therefore,   despite  three  persons  could  not  explain  satisfactory  reason  of  their  presence, their presence cannot be denied. ”

18. These findings were set aside by the learned First Appellate  

Court  which  stated  that  it  was  an  accidental  firing  and  the  

prosecution has failed to prove its case.  The benefit was given to  

the   accused  primarily  on  certain  surmises  and  conjectures  and  

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doubting  the  presence  of  the  witnesses  particulaly  Ram Shankar  

whose presence had been admitted by the  accused himself in the  

report lodged by him and even in his explanation before the Court.

19. Definite doubts or lacunae in the case of the prosecution may  

result  in  benefit  of  doubt  being  given  to  the  accused  and  

consequential acquittal.  However, such doubts and lacunae must be  

clearly  distinguished  from doubts  or  lacunae  based  upon  certain  

assumptions.  In such cases what appears to be loop-hole  in the  

case  of  the  prosecution  at  the  first  glance,  on  appropriate  

examination  and  appreciation  of  evidence,  may fall  in  the  other  

class.    The following observations of the learned First Appellate  

Court clearly demonstrates that Court has founded its  judgment of  

acquittal  more   on  surmises  and suspicion and the  views of  the  

Court  which  were  not  supported  by  evidence  on  record.  

Illustratively,  the following observations can usefully be noticed:

“ (a) It is evident that left arm is not a vital part. If  the appellant was fired from a close range within 4  feet,  he could have  easily aimed at the chest of  the  victim,   which  could  have  killed  him at  the  spot.

(b) But  when  the  motive  alleged  is  the  very  genesis  or  commencement  of  the   prosecution  story,   it  would  not  be  possible  to  discard  the  defect  relating  to  motive  or  genesis  in  the  prosecution story.

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(c) The third important  feature   of the  case is  simultaneous  presence    of   Bhanu  Prakash,  Dharam Prakash and Ram Shanker at the crossing.  

(d) Then the only possible inference is that they  were together at the crossing or at the tea stall for  some  other  reason  and  as  soon  as  they  saw  appellant Satyavir Singh,  a youngman alongwith a  gun,   they  were  tempted  to  snatch  the  gun.  According to medical evidence the very seat of the  injuries discloses that the shots would have been  fired during snatching. ”

20. The  above  observations  demonstrate  that  the  learned  First  

Appellate Court has proceeded  on the basis of certain presumptions  

which in the opinion of the Court could be the correct approach. But  

such  approach  may be  guided  by  the  doctrine  of  perversity.   If  

findings are neither supported by evidence nor such approach could  

be adopted by the person of common prudence or behaviour, then  

the  court  may interfere  in  a  judgment  of  acquittal.    The   First  

Appellate  Court  is  a court  of both fact  and law and as such has  

jurisdiction to entirely re-appreciate the evidence.    Thus,  while  

setting aside the order of conviction  it has to equally ensure that no  

injustice is done and on certain assumptions of facts, guilty may not  

go scot free.  A person otherwise  is proved  to be guilty by the  

prosecution  by  leading  cogent  and  reliable  evidence,  normally  

would not  be given  the  benefit  of  doubt  on  the  basis  of  certain  

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assumptions or presumptions of facts.     The Court may have to  

notice and rely upon behaviour of the person of a common prudence  

only where the direct evidence have been  produced.      As we shall  

shortly proceed to discussion that  the  assumptions raised by the  

First Appellate Court are not supported on record.  We find that the  

High Court has not fallen  in error  of law in setting aside the order  

of acquittal and affirming the judgment of  conviction rendered by  

learned trial court.

21. Now  we  may  proceed  to  examine  the  appreciation  of  

evidence  on  record  by  the  First  Appellate  Court  acquitting  the  

accused as well as that of the High Court reversing the judgment of  

acquittal.

22. The High Court noticed that the fields of farmers in village  

Niwari were irrigated from the tubewell of Prahalad Singh Thakur  

which was installed in that village.  It was because of construction  

of the road for the Power House that the farmers of village Niwari  

started  irrigating  from  the  tubewell  of  Bhanu  Prakash  Sharma  

resident of Village Jairampur Bangar.  This was not bearable to the  

accused who is the son of Prahlad Singh Thakur.  Thus, this may  

not be exactly a motive but was a reason enough for the accused to  

take an offensive step against the injured.

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23. The first  information report  was lodged by Bhanu Prakash  

Sharma without any delay and as already noticed Dharam Prakash  

(PW-3) had been challenged by the accused saying that how he was  

irrigating the fields of the villagers of his village from his tubewell.  

Armed with a licensed gun of his brother, he opened fire on Dharam  

Prakash and shot two bullets.  The occurrence was seen by Bhanu  

Prakash Sharma (PW-1), who was present there as well as Rama  

Shankar (PW-4) and some others.  The accused was arrested and  

the gun was also deposited.  Ext.Ka-1 report to the police station  

was lodged by Bhanu Prakash Sharma (PW-1).  

24. Dharam Prakash was medically examined on 9th February,  

1975 at about 4.35 p.m. and according to Dr. Suresh Chandra Singh  

(PW-5), three injuries were found on the person of the injured who  

was then subjected to X-Ray by Dr. A.K. Agarwal (PW-8),  who  

was posted as Radiologist in District Hospital, Bulandshahr.  It has  

been proved on record by Dr. Jitendra Singh Sharma (PW-7) that  

Dharam Prakash remained in the hopsital from 9th Febraury, 1975  

to 20th March, 1975.

25. The medical evidence clearly reflected that the injuries could  

be caused by gun shots.   However,  there was little  difference of  

opinion  between  two  doctors  but  both  these  doctors  are  not  the  

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ballistic experts so as to provide any expert opinion which could  

safely be relied upon by the Court while deciding the case.   

26. The difference of opinion between experts  necessarily may  

not  persuade  the  Court  to  adopt  one  approach  or  the  other  

particularly  when  none  of  the  experts  are  persons  competent  to  

express opinion on that subject.  The difference of opinion between  

two doctors which,  in the facts  and circusmtances of the present  

case,  does  not  have  any  material  bearing  on  the  case  of  the  

prosecution is not such a formidable submission which has to be  

accepted by the Court to grant necessarily the benefit of doubt to  

the accused.   

27. In  the  case  of  Malay  Kumar  Ganguly   v.   Dr.  Sukumar  

Mukherjee & Ors. : (2009) 9 SCC 22, this Court has, while noticing  

the difference of opinion between the doctors on the basis of the  

evidence on record and the literature produced, preferred one view  

over the other without commenting on any expert opinion expressed  

by either of them.  

28. It was stated by Dr. Suresh Chandra Singh (PW-5) that such  

injuries could be caused by gun shots.  The trial court and the High  

Court  expressed  in  unambiguous  language  the  view  that  it  was  

possible that no gun powder was traced around the wounds of the  

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injuries as he was wearing clothes.  This finding cannot be said to  

be  erroneous.   Dr.  A.K.  Agarwal  (PW-8)  clearly  stated  that  the  

pellets of the fire shots were found in the wounds and were duly  

seen in the X-Ray of the injured.   Thus such view taken by the  

courts cannot be faulted.  In fact the major part of the occurence is  

not even disputed by the accused in his statement under Section 313  

of  Cr.P.C.  and  in  any  case  the  report  lodged  by  him  bearing  

No. 27A/75 clearly shows that the incident occurred and the injured  

besides, other two witneses, PW-1 and PW-2 were present at the  

spot.   In  fact  according to  the  accused it  was  an  accidental  fire  

which occurred as a result of snatching of the gun by the injured  

and other persons accompanying him at that time.  While, according  

to the prosecution he had fired two shots  which injured the victim  

and thereafter  the gun was snatched.  Dr.  Suresh Chandra Singh  

(PW-5) examined the injuries of the injured and stated that injuries  

would have been caused 2-3 hours earlier and that when the injured  

was brought to the hosptial he was bleeding and such injuries could  

be sustained by gun shots.  This statement of the doctor had fully  

supported the case of the prosecution and chain of events as stated  

therein.

29. With considerable emphasis, learned counsel for the appellant  

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aruged that as no explanation was rendered by the prosecution as to  

how the gun had broken, this would straightaway cause serious dent  

in  the  case  of  the  prosecution  and  entitles  the  accused  for  an  

acquittal.   

30. We find no merit in the aforesaid contention.  It was for the  

accused to prove his defence as the prosecution is liable to prove  

the case as stated in the first information report and the report filed  

by it under Section 173 of Cr.P.C.  The eye witnesses had actually  

seen the victim being injured by the shots fired by the accused.  In  

fact the accused was apprehended at the spot with the gun.  The gun  

in question was admittedly a double barrel gun and the same was  

used by the accused while firing two shots.  The gun with the spent  

cartridges  were  taken  into  custody  vide  Ext  Ka-3.   The  accused  

himself  had lodged the report  bearing No. 27A/75 under Section  

394 of the Indian Penal Code against the eye-witnesses including  

Bhanu Prakash Sharma, Dharam Prakash, Rama Shankar  and one  

unknown person.  The report lodged by the accused,  itself  shows  

as to how the gun was broken.  But the breaking incident took place  

after the two shots had been fired by the accused upon the injured.  

There  appears  to  be  no  justifiable  reason  as  to  why  the  eye  

witnesses PW-1 and PW-4, who even according to the accused were  

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present at the place of occurrence, should be disbelieved.  It could  

be safely construed from the evidence on record that the accused  

may not have any strong motive to kill the victim, however, the loss  

of revenue on account of the fact that water for irrigation was being  

provided by the father of the injured, was reason enough for the  

accused to show his anger or it was not acceptable to him, as stated  

by the witnesses, thus he fired two shots which resulted in causing  

injuries to Dharam Prakash.   Both the reports were lodged by the  

informant as well as the accused at 2.30 p.m. on 9th February, 1975.  

The gun and the utilized bullets  were given at  the police station  

itself.  This evidence clearly shows that prosecution has not failed  

in proving its case in accordance with law.  

31. As already noticed, part of the occurence stands admitted and  

it is only the limited aspect of the case as to whether the firing was  

accidental  or  the  accused  had  intentionally  fired  on  the  injured.  

Statement  of  the  eye  witnesses,  medical  evidence  and  the  

investigation conducted by the Investigating Officer clearly  show  

that  the  prosecution  has  been  able  to  prove  its  case  beyond  

reasonable  doubt.   The  act  of  firing  gun  shots  at  the  injured  

obviously shows that the accused had the knowledge that by such  

an  act  he  may  even  cause  the  death  of  the  injured  and  actually  

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caused hurt to victim.  It is a matter of  co-incidence that the gun  

shots did not injure Dharam Prakash at any of his vital organs.   

32. Learned counsel appearing for the appellant while referring to  

certain discrepancies appearing in the statements of the witnesses  

including the doctors, vehemently contended that it was a case of  

acquittal and there was no intention on the part of the accused to kill  

the injured otherwise he would have fired the gun shots at the vital  

parts of the body of the injured, particulary when according to the  

prosecution,  it  is  stated  that  the  firing  took  place  from  a  close  

distance.  If that was so, such injuries would not have been caused.  

This contention also does not impress us inasmuch the tattooing and  

charring shall always depend upon the constituents of the propellant  

charge and it is in that context only wounds are classified by their  

external appearance as close contact.   Reference can be made to  

Bano Prasad & Ors. v.  State of Bihar : 2006 (12) SCALE 354.

33. Some discrepancies per se would not prove fatal to the case  

of the prosecution particularly when there is no reason before the  

Court to doubt the statement of the eye witnesses, PW-1.  There has  

been no delay in registration of the case and in fact even a counter  

case was registered which did not result in favourable culmination  

for the accused.  It may also be noticed that the learned trial court as  

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well as the High Court has referred to the statement of the accused  

recorded under Section 313 of Cr.P.C. which to some extent falls in  

line with the case of the prosecution.

34. The cumulative effect of the above discussion is that we do  

not see any reason to interfere with the judgment of the High Court.  

The High Court has not exceeded its jurisdiction in law and with  

reference to the evidence on record while reversing the judgment of  

acquittal to one that of conviction.  So far as the conviction of the  

accused under Section 25(1) of the Act is concerned, no arguments  

were addressed.  In any case we see no reason to interfere with the  

said finding of the courts below.

35. In the result, the appeal fails and is dismissed.  

........................................J.  [ ALTAMAS KABIR ]

........................................J.       [ SWATANTER KUMAR ]

New Delhi. February 11, 2010

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